Madras High Court
Hatsun Agro Product Ltd vs Patanjali Biscuits Pvt Ltd on 21 April, 2026
Author: P.Velmurugan
Bench: P.Velmurugan
OSA No.263 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 07-04-2026
DATE OF DECISION : 21-04-2026
CORAM
THE HONOURABLE MR JUSTICE P.VELMURUGAN
AND
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN
THILAKAVADI
OSA No.263 of 2020
Hatsun Agro Product Ltd.,
Having registered office at
No.1/20-A, Rajiv Gandhi Salai (OMR)
Karapakkam, Chennai-600 097
And also carrying on its business at
Old No.AD-83/New No.AD13
Anna Nagar, Opp. IOB Towers Branch
Chennai-600 040
Represented by its Authorised Signatory
Appellant
Vs
1. M/s.Patanjali Biscuits Pvt. Ltd.,
Continental Chambers, 5th Floor
15A, Hemantha Basu Sarani
Kolkatta-700 001
2. M/s Patanjali Ayurved Ltd.,
Plot No.209, Bhalawa Village
Opposite Jaiangir Puri
G.T.Karnal Road, Delhi-33
Respondents
Memorandum of Grounds of Original Side Appeal filed under Order
XXXVI, Rule 1 of Original Side Rules read with Clause 15 of Letters Patent, to
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OSA No.263 of 2020
set aside the judgment and decree dated 07.02.2020 passed by the Hon’ble
Court in Application No.2920 of 2019 in C.S.No.33 of 2019.
For Appellant: Mr.N.Surya Senthil and
Mr.Shubham M.George
for M/s.Surana and Surana
For Respondents: Mr.P.Giridharan for R1 & R2
JUDGMENT
P.Velmurugan J.
This original side appeal has been directed against the judgment and
decree passed by the learned single Judge in Application No.2920 of 2019 in
C.S.No.33 of 2019 dated 07.02.2020, in and by which the suit filed by the
plaintiff for infringement and passing off of its registered trade mark “Arogya”
by the defendants and causing damage to the goodwill and reputation earned by
the plaintiff, has been dismissed summarily with costs.
2. The appellant herein, being the plaintiff, filed the suit for infringement
and passing off of its registered trade mark “AROKYA” by the defendants and
causing damage to the goodwill and reputation earned by the plaintiff stating
that the plaintiff is India’s one of the largest Private sector in the dairy products
and it has established dairies at various places in South India with state of art
facilities meeting the high norms of hygiene and health. Besides milk, the
plaintiff is also engaged in manufacturing other dairy products like ice creams,
dairy whitener, skimmed milk powder AGMARK certified ghee, butter, cooking
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OSA No.263 of 2020
butter, varieties of curd, panneer and butter milk. Its products are exported to 32
countries including Africa, Middle East and other East Asian countries. The said
products are marketed through various brands such as ARUN, HATSUN,
AROKYA, IBACO etc. The plaintiff has built up a very high and enviable
reputation and goodwill for their products marketed under the trade mark,
AROKYA by virtue of continuous uninterrupted and extensive use of the social
market. It has adopted and used the trademark AROKYA in respect of milk and
milk products since, 1994. The said trademark AROKYA has come to be
distinctive and identified and associated with the plaintiff and has clearly
acquired secondary meaning to connote and denote the products of the plaintiff.
The plaintiff has very huge network of distribution and marketing. Its products
are available everywhere and the trademark has acquired the status of well
known mark. Hence, it vigilantly protects its rights with respect to the trade
mark AROKYA and has filed applications for registration of the trade mark
AROKYA in respect of all the classes in the nice classification and has obtained
registrations for its products as below:-
Number Class Date of Filing Status
2871323 1 29.12.2014 Registered
2871324 2 29.12.2014 Registered
2871325 3 29.12.2014 Registered
2871326 4 29.12.2014 Registered
2871327 5 29.12.2014 Pending
2871328 6 29.12.2014 Registered
2871329 7 29.12.2014 Registered
2871330 8 29.12.2014 Registered
2871331 9 29.12.2014 Registered
2871332 10 29.12.2014 Registered
2871333 11 29.12.2014 Registered
2871334 12 29.12.2014 Registered
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OSA No.263 of 2020
2871335 13 29.12.2014 Registered
2871336 14 29.12.2014 Registered
2871337 15 29.12.2014 Registered
2871338 16 29.12.2014 Registered
2871339 17 29.12.2014 Registered
2871340 18 29.12.2014 Registered
2871341 19 29.12.2014 Registered
2871342 20 29.12.2014 Registered
2871343 21 29.12.2014 Registered
2871344 22 29.12.2014 Registered
2871345 23 29.12.2014 Registered
2871346 24 29.12.2014 Registered
2871347 25 29.12.2014 Pending
2871348 26 29.12.2014 Registered
2871349 27 29.12.2014 Registered
2871350 28 29.12.2014 Registered
2871351 29 29.12.2014 Registered
2871352 30 29.12.2014 Pending
2871353 31 29.12.2014 Registered
2871354 32 29.12.2014 Registered
2871355 33 29.12.2014 Registered
2871356 34 29.12.2014 Registered
2871357 35 29.12.2014 Registered
2871358 36 29.12.2014 Registered
2871359 37 29.12.2014 Registered
2871360 38 29.12.2014 Registered
2871361 39 29.12.2014 Registered
2871362 40 29.12.2014 Registered
2871363 41 29.12.2014 Pending
2871364 42 29.12.2014 Registered
2871365 43 29.12.2014 Registered
2871366 44 29.12.2014 Registered
2871367 45 29.12.2014 Registered
3. While so, the defendants filed various applications for trademark
‘AAROGYA’ either alone or in combination of other words. The plaintiff on
coming to know about it, issued separate notice of oppositions, dated
09.10.2015 before the concerned Trademark Registry and the same are pending.
In the month of June 2016, the plaintiff came across the products of the first
defendant, namely biscuits sold under the trademark PATANJALI AAROGYA.
To the plaintiff notice to cease and desist from using the trademark AAROGYA
which amounts to infringement of its well known trade mark AROKYA, the
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OSA No.263 of 2020
first defendant has replied that these two marks are distinct and different.
Earlier, when two other applications were made for registration of trademark
under class 5 and class 29, the plaintiff filed its objections and same was
abandoned by the defendants. Now under class 30, they have obtained
registration for PATANJALI AAROGYA. Hence, the plaintiff has already
initiated opposition proceedings before the trade mark registry against the
defendants’ trademark and the same is pending. The plaintiff alleges that the use
of the offending trademark PATANJALI AAROGYA by the defendants is an act
of dishonesty and solely with bad faith. It is an infringement of the plaintiff’s
registered trademark as the defendants are using the offending trademark with
respect to the biscuits made out of milk. This is in the teeth of the fact that the
defendants have obtained registration for milk and dairy products in respect of
which the plaintiff’s trademark AROKYA is extensively used and thus
committed a serious act of infringement of the plaintiff’s registered trademark.
It was also alleged that the defendants are passing off their goods as that of the
plaintiff by using the offending trademark PATANJALI AAROGYA. Therefore,
the plaintiff sought for a judgment and decree seeking the following reliefs:-
(a) For permanent injunction restraining the defendant by itself,
its agents, servants or any one claiming through it from in any manner
infringing the plaintiff’s trade mark ‘AROKYA’ by using the trademark
‘AAROGYA’ or any other mark or marks which are in any way
identical or deceptively similar or colourable imitation of the plaintiff’s
registered trademarks as described in the Schedule to the plaint.
(b) For permanent injunction restraining the defendant by itself,
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OSA No.263 of 2020its servants or agents or anyone claiming through it from in any manner
passing off its products as that of the plaintiff by using the offending
trademark ‘AAROGYA’ which are similar, deceptively similar and
identical to the plaintiff’s trademark ‘AROKYA’ or by using any other
trademark which is similar, deceptively similar or identical to that of the
plaintiff’s trademark ‘AROKYA’ by manufacturing or selling or offering
for sale or in any manner advertising the same.
(c) Directing the defendant to surrender to the plaintiff the entire
products with the offending labels, stocks with offending labels together
with the blocks and dies, name boards, sign boards etc for destruction.
(d) Directing the defendant to render true and faithful accounts of
the profits earned by them through the sale of the offending milk
products bearing the offending trademark label and directing payment
of such profits to the plaintiff.
(e) Directing the defendant to pay to the plaintiff the cost of the
suit.
4. Pending the suit, the plaintiff also filed O.A.Nos.33 & 34 of 2019
seeking for an order of interim injunction restraining the defendants from in any
manner infringing the plaintiff’s trademark ‘AROKYA’ and also from passing
off its products by using the offending trademark AAROGYA. This Court, by
order dated 28.02.2019, granted an order of interim injunction for a period of
four weeks i.e., till 28.03.2019.
5. Aggrieved by the above order, the defendants, by way of written
statement and counter, filed A.Nos.2230, 2231 & 2920 of 2019 seeking to
vacate the order of interim injunction and also to dismiss the suit summarily,
contending inter alia that the suit for infringement is not maintainable. The
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word ‘AAROGYA’ is a Sanskrit word which means ‘overall well being’. The
second defendant is carrying on business since 2006 in natural health, food,
personal care, home care and allied fields including yoga related practices. The
plaintiff is engaged only in milk and milk products and marketing the same
using the trademark ‘AROKYA’. The plaintiff’s have not diversified in
manufacturing any other products apart from milk and dairy related products
using the said trademark. The product of the plaintiff and the product of the
defendants are entirely different. ‘AROKYA’ for milk and milk products and
‘PATANJALI AAROGYA’ for biscuit are distinct and totally different. They are
non-identical and distinctive. They are phonetically and visually dis-similar.
This will no way damage the goodwill or reputation of the plaintiff. Further, the
defendants products also share a good reputation among consumers. The
defendants products are marketed all over India and in the said effect, several
crores of rupees is spent for advertising their products with the word
“Patanjali”. The suit is filed suppressing the fact that the defendants are the
registered owners of the trademark “Patanjali Aaroyga” both in English and
Hindi under class 30. The plaintiff has not got the trademark registration under
class 30. Under the Trade Marks Act, no suit for infringement can be instituted
against a registered trademark holder. In view of sections 28 and 134 of the
Trade Marks Act, the suit is not maintainable. When suit for infringement itself
is not maintainable, the relief for passing off also not maintainable. Further, the
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defendants 1 and 2 are carrying on business at Kolkatta and New Delhi
respectively. For relief of passing off, suit has to be filed at the defendants place.
Hence, for lack of jurisdiction and for being barred by law, the suit has to be
dismissed by passing a summary judgment holding that the plaintiff has no real
prospect to succeed in the suit.
6. The learned Judge, by order dated 05.07.2019 in O.A.Nos.33, 34 of
2019, A.Nos.2230, 2231 & 2920 of 2019, after hearing the parties, passed the
following order:-
“16. Legal obligation of one party to a victim as a result
of a civil wrong or injury requires some form of remedy from a
court system. A tort liability arises because of a combination of
directly violating a person’s rights and the transgression of a
public obligation causing damage or a private wrong doing.
Evidence must be evaluated in a court hearing to identify who
the tort feasor / liable party is in the case.
17. It is relevant to point out that there is no
interconnectivity between the products sold by the Plaintiff and
the Defendants and the classes of registration are also different,
as the Plaintiff’s trademark was registered under Class 29,
whereas the products of the Applicants/Defendants was under
Class 30. The Plaintiff’s Trademark “Arokya” was familiar
amongst general public in connection with milk and milk
products only, whereas the Applicants/Defendants involve in8
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OSA No.263 of 2020preparation of biscuit related items. In this regard, I find much
force in the contention raised by the learned counsel for the
Applicants/Defendants that the mark has to be viewed as a
whole and together and cannot be looked into in a divided form
and in an isolated manner.
18. It is seen that the Applicants/Defendants are
carrying on its business under the Trademark “Patanjali
Aarogya” for nearly three years and the Plaintiff, having kept
quiet all these years, cannot attempt to stall the business of the
Applicants/Defendants on one fine morning, unless there is a
specific finding in the suit after full fledged trial. Hence, this
Court finds that there is no need for an interim order to be in
operation and therefore, the interim injunction granted by this
Court on 28.02.2019, which was later on ordered to be kept in
abeyance for shorter period, is liable to be vacated.
19. Accordingly, Application Nos.2230 and 2231 of
2019 are ordered and the interim injunction granted by this
Court in O.A.Nos.33 and 34 of 2019 on 28.02.2019 is hereby
vacated.
21. A.No.2920 of 2019 filed to pass a summary
judgment is dismissed, in view of the fact that the interim order
granted by this Court is vacated and the entire issues, such as
damages, jurisdiction, passing off, etc need to be decided after
full-fledged trial by letting the respective parties to adduce both
oral and documentary evidence.
22. It is made clear that the observations made herein
above are only for the purpose of disposal of these9
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OSA No.263 of 2020Applications and it will have no bearing on the main suit to be
decided.”
7. Aggrieved by the above order, the plaintiff and the defendants filed
O.S.A.Nos.264, 284 & 285 of 2019 respectively, and the Division Bench of this
Court, by order dated 05.11.2019, disposed of the appeals with the following
observations:-
“6. The learned counsel for the defendants
Mr.P.Giridharan, submits that the learned Single Judge
has summarily rejected the application in Application
No.2920/2019, filed by the defendants, to pass a
Summary Judgment under Order XIIIA of the Code of
Civil Procedure without any reason and since the said
application filed by the defendants was filed before
framing of issues and the full fledged trial of the said
suit would defeat the very purpose of XIIIA of
Commercial Courts Act, 2015 (4 of 2016) as inserted in
the Code of Civil Procedure Code.
7. On the other hand, the learned counsel for the
plaintiff/respondent Mr.Aashishjazn Lunza submits that
the issues raised in the plaint deserves full fledged trial
and rejection of the Application No.2920 of 2019, filed
by the defendants, was justified. He further submits that
even vacating of the injunction granted earlier in favour
of the plaintiff was not justified and therefore, he has10
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OSA No.263 of 2020also filed Cross Appeals viz., O.S.A. Nos.284 and 285 of
2019 before this Court.
8. Having regard to the above submissions and
perusing the materials available on record, the learned
Single Judge has given cogent reason for vacating the
injunction and hence, we are not inclined to interfere
with the order passed by the learned Single Judge in
Application Nos.2230 and 2231 of 2019. Therefore,
O.S.A.Nos.284 and 285 of 2019 are dismissed.
9. But, we note that the rejection of the
Application No.2920 of 2019, filed by the defendants, to
pass a summary judgment, has been summarily rejected
by the learned Single Judge without giving any conjoint
reasons.
10. Certainly, a full fledged trial of a suit will
consume a lot of time of the Court and therefore, unless
there are cogent and strong reasons as envisaged under
Order XIIIA of the Civil Procedure Code as applicable to
commercial disputes under the provisions of the
Commercial Courts Act, 2015 (4 of 2016), inserted in the
Code of Civil Procedure, the dismissal of the Application
by the learned Single Judge in Application No.2920 of
2019, for summary judgment, is not sustainable.
11. Since the learned Single Judge has not dealt
with these aspects, we are inclined to allow the present
appeal, filed by the defendants. Accordingly,
O.S.A.No.264 of 2019 is allowed and we set aside the11
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OSA No.263 of 2020order passed by the learned Single Judge in Application
No.2920 of 2019 and the matter is remitted back to the
learned Single Judge to decide the Application No.2920
of 2019, filed by the defendants to pass a Summary
Judgment once again as expeditiously as possible.
12. With the above directions, all the appeals are
disposed of. No costs. Consequently, the connected
miscellaneous petitions are closed.”
8. On the matter being remanded, the learned single Judge has taken up
the Application No.2920 of 2019 filed by the defendants for fresh consideration
and by the impugned order dated 07.02.2020, has allowed the application and
dismissed the suit with costs, observing as follows:-
“25.Order XIII Rule (3) C.P.C., states the grounds
for summary judgment. The Court may give a summary
judgement against a plaintiff or defendant on a claim if
it considers that
a) the plaintiff has no real prospect of succeeding
on the claim or the defendant has no real prospect of
successfully defending the claim, as the case may be;
and
b) there is no other compelling reason why the
claim should not be disposed of before recording of oral
evidence.
26. First it has to be seen, ‘whether there is any
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OSA No.263 of 2020
compelling reason to record oral evidence in this case’.
The statements made by the plaintiff in the plaint are
substantially accepted by the defendants, except the
plea regarding the status of ‘well known trademark’ and
the allegation of infringement. The defendants have not
seriously controverted other facts averred in the plaint.
When the plaintiff proprietorship of the trademark
“Arokya” and the use of the trademark ‘Patanjali
Aarogya’ by the defendants is not in dispute for facts
admitted no proof required. Therefore, there is no
compelling reason in this case for recording oral
evidence.
27.Next, we have to see ‘whether there is any real
prospect of success for the plaintiff’. As discussed
earlier, when section 12 of the Trade Marks Act give
discretion to the Registrar to permit registration by
more than one proprietor of the trademark which are
identical or similar in case of honest concurrent use and
when section 28(3) of the Trade Marks Act permits
coexistence of two or more owners of identical or
nearly similar trademark, the plaintiff prospect to
succeed is nil even if the plaintiff averments are taken
as proved in toto.
28. Apart from the statutory impediment for the
plaintiff to succeed, even on facts, the case of the
plaintiff has no possibility of success because, the
product of the defendants is not identical or similar to
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OSA No.263 of 2020
that of the plaintiff. The class under which the
defendants holding his trademark registration is
different from the class under which the plaintiff holds
trademark registration. The plaintiff has not in the trade
of manufacturing biscuits and no sign of its intention to
involve in biscuit manufacturing in future.
29. As reprimanded by the Supreme Court in
Vishnudas case (cited supra), the plaintiff cannot try to
have monopoly over the trademark for all products and
prevent others using the mark for the goods which the
plaintiff not producing. Further, the litmus test for
infringement is not only the phonetic similarity or
visual similarity but also to attract section 29(2) of the
Trade Marks Act, the similarity or identity must likely
to cause confusion on the part of the public, or ‘whether
is likely to have an association with the registered
trademark’. To attract section 29(4) of the Trade Marks
Act, the registered trademark must have reputation in
India and the use of the mark without due cause takes
unfair advantage or is detrimental to, the distinctive
character or repute of the registered trade mark.
30.By using the word ‘Aarogya’ along with the
word ‘Patanjali’ for the biscuits manufactured by the
defendants can no way be detrimental to the milk or
milk product of the plaintiff marketed in the name
“Arokya”. In fact the brand ‘Patanjali’ due to its vast
presence in the market through various products enjoys
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OSA No.263 of 2020
secondary meaning and it is not the word “Arogya” a
generic word which enjoys secondary meaning. The
averment of the plaintiff that the defendants attempt to
steal the bulwark and palladium created by the plaintiff
is a shallow jargon borrowed from judicial
pronouncement. The allegation against the defendants
that the plaintiff’s good will at stake and reputation is in
peril are only an illusion but not real.
31. For the said reasons, the application is
allowed and consequently, the suit is dismissed with
costs.”
9. Questioning the correctness of the impugned order, the
appellant/plaintiff has filed the present appeal before this Court.
10. The learned counsel appearing on behalf of the appellant would
submit that the appellant is India’s one of largest private sector dairy and in fact
one of the market leaders in the food processing industry. It is involved in the
manufacture and marketing of various food products including milk and dairy
products and has been doing the business from 1970 and using the trademark
AROKYA since 1994 and is also the registered proprietor of the trademark
AROKYA under Class 29 for milk and dairy products and also under Class 30
for products such as ice creams, deserts and confectionery. The appellant has
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OSA No.263 of 2020
registration for the trademark AROKYA, both for the word as well as its devices
and continues to enjoy its proprietary rights obtained through such registrations
and earned their goodwill and reputation with respect to its trademark
AROKYA. They came to know about the trademark applications made by the
first respondent for registering the trademark AAROGYA. The appellant
opposed the trademark applications through separate notice of opposition filed
with the Trademarks Registry on 09.10.2015 and the same are also pending.
Subsequently, the appellant, in the month of June 2016, came to know that the
first respondent sold the products under the trademark PATANJALI AAROGYA
and the appellant dispatched the notice dated 14.06.2016. The first respondent
sent a reply dated 30.06.2016 contending that the two marks were different from
one another, which is wholly untenable in law. Further, the second respondent
also filed trademark applications, for which the appellant filed the opposition
applications and immediately, the appellant filed the suit for infringement and
passing off caused to its trademark AROKYA in C.S.No.33 of 2019 and
obtained an interim order of injunction. The respondents filed applications in
A.Nos.2230 & 2231 of 2019 for vacating the interim order, taking a stand that
the second respondent obtained registration even in the year 2016 for the
trademark PATANJALI AAROGYA and despite the appellant’s opposition, the
second respondent has registered the trademark PATANJALI AAROGYA
through fresh application. The respondents also filed an application in
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OSA No.263 of 2020
A.No.2920 of 2019 for passing of summary judgment dismissing the suit
invoking Order XIII-A, Rule 3 of Civil Procedure Code. The learned Judge
vacated the interim order and also passed the judgment of summary dismissal in
favour of the respondents quoting the decision of the Hon’ble Supreme Court in
Vishnudas Trading v. Vazir Sultan Tobacco Ltd., (1997) 4 SCC 401, without
considering the fact that the appellant has made huge investments and also the
registered proprietor of the trademark AROKYA, which is a well known
trademark in the market. The learned counsel also submitted that the
respondents registered the very same trademark being phonetically similar,
which affects the appellant’s reputation, goodwill and also the profits by
creating confusion in the minds of the public. The learned Judge also failed to
consider the scope and object of the suit and also the relief sought for by the
appellant for infringement and passing off. The learned Judge, without
considering the fact that there are triable issues, which can be decided only after
completion of pleadings, framing of issues and after a full-fledged trial after
recording of evidence, ought not to have dismissed the suit by passing the
summary judgment at the preliminary stage. Therefore, the learned counsel
submitted that the judgment and decree passed by the learned single Judge are
liable to be set aside.
11. The learned counsel appearing on behalf of the respondents would
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OSA No.263 of 2020
submit that the appellant’s trademark AROKYA is only associated with the milk
and milk products falling under class 29 and not under class 30, as its
application is pending consideration, whereas the respondents are the registered
proprietor of the trademark PATANJALI AAROGYA for multigrain biscuit
falling under class 30, which is a well known trademark. Further, the products
of the respondents are protected under Section 28(3) of the Trade Marks Act,
which are sold all over India, whereas the appellant’s products are sold only in
South India. Therefore, there is no question of confusion in the minds of the
public, as both the products are distinct. Therefore, the learned Judge rightly
held that the appellant cannot claim monopoly in the trade and cannot prevent
the other registered proprietor of the trademark from marketing their products
by taking advantage of the phonetic similarity. The learned Judge, after
considering Sections 28(3) & 29 of the Trade Marks Act and also Order XIII A
of Civil Procedure Code, as amended in the Commercial Courts Act, 2015,
which lays down the procedure by which the Court may decide a claim
pertaining to any commercial dispute without recording oral evidence, has held
that there is no need to go for a full-fledged trial, as there is no compelling
reason in this case for recording oral evidence, as the products of the appellant
and the respondents are distinctive and the claim of the appellant is barred under
Section 28(3) of the Trade Marks Act, has rightly passed the summary judgment
and rejected the claim of the appellant. Therefore, the learned counsel
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OSA No.263 of 2020
submitted that there is no merit in the appeal and the same is liable to be
dismissed.
12. We have heard the learned counsel for the appellant and the learned
counsel for the respondents and perused the materials available on record.
13. The specific case of the appellant is that the respondents are using the
offending trademark PATANJALI AAROGYA, though under class 30, in respect
of the biscuits made out of milk by committing an act of infringement of the
registered trademark of the appellant AROKYA for milk and dairy products
with dishonesty and bad faith and thereby passing off their goods as that of the
appellant by using the offending trademark, which necessitated the appellant to
file the suit for infringement and passing off, on the ground that it has caused
damage to the goodwill and reputation earned by the appellant.
14. The case of the respondents is that that the suit for infringement is not
maintainable, as the word ‘AAROGYA’ is a Sanskrit word which means ‘overall
well being’ and the second respondent is carrying on business since 2006 in
natural health, food, personal care, home care and allied fields including yoga
related practices. Whereas the appellant is engaged only in milk and milk
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products and marketing the same using the trademark ‘AROKYA’ in South
India. The product of the appellant and the product of the respondents are
entirely different, since the trademark ‘AROKYA’ is used for milk and milk
products and ‘PATANJALI AAROGYA’ is used for biscuits, which are non-
identical and distinctive in the market. Though they are phonetically and
visually dis-similar, this will no way damage the goodwill or reputation of the
appellant. Further, the respondents’ products also share a good reputation among
consumers, as they are marketed all over India and in the said effect, several
crores of rupees is spent for advertising their products with the word
“Patanjali”. The appellant has filed the suit suppressing the fact that the
respondents are the registered owners of the trademark “Patanjali Aaroyga” both
in English and Hindi under class 30 and the appellant has not got the trademark
registration under class 30. In view of sections 28 and 134 of the Trade Marks
Act, the suit for infringement is not maintainable against a registered trademark
holder. When suit for infringement itself is not maintainable, the relief for
passing off also not maintainable.
15. The point for consideration in this appeal is whether the summary
judgment of dismissal passed by the learned single Judge is liable to be
interfered with by this Court?
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16. Admittedly, the appellant is the registered proprietor of the trademark
AROKYA related to the milk and milk products marketed in South India and
they filed the suit for infringement and passing off stating that the respondents
have infringed the trademark of the appellant by using the offending trademark
PATANJALI AAROGYA. Though the appellant initially obtained an order of
interim injunction against the respondents, subsequently the said order came to
be vacated by the learned single Judge. In the meanwhile, the respondents also
filed the application under Order XIIIA, Rule 3 of the Civil Procedure Code, as
amended in the Commercial Courts Act, 2015, for a summary judgment. The
said application was allowed on the ground that the respondents also applied for
registration of the trademark PATANJALI AAROGYA in respect of selling of
biscuits in the market. Though the appellant filed an application raising
objections before the Registrar of Trade Marks, the same is yet to be decided
falling under the exclusive domain of the Registrar of Trade Marks. The bone
of contention on the side of the appellant is that the respondents have infringed
the trademark of the appellant, since they are phonetically similar by the
expression ‘Arokya’ or ‘Aarogya’ and therefore the people would get confusion.
In order to safeguard its goodwill and reputation, the appellant filed the suit for
infringement and passing off. But the specific case of the respondents is that the
products marketed by the appellant and the respondents are distinctive and dis-
similar and initially the appellant registered the trademark for the sale of milk,
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OSA No.263 of 2020
which was subsequently extended to the other dairy products. Whereas the
respondents registered the trademark AAROGYA with the prefix PATANJALI
in respect of the biscuits sold all over India. The appellant also suppressed the
fact that the respondents are the registered proprietor of the trademark
PATANJALI AAROGYA both in English and Hindi under class 30 and that the
appellant registered the trademark only under class 29 and not under class 30.
Therefore, the appellant’s trademark concerns with the milk and milk products,
whereas the respondents’ trademark concern with the biscuits and other items.
Though one of the contentions raised on the side of the appellant that for
manufacturing biscuits, milk is used, the said argument is not sustainable. As far
as the trademark is concerned, if the people or the customers get confused, they
would not go deep into the contents of the products. They will only see the
similarity and if the same products under the same trademark are marketed, the
people may get confused and the goodwill and reputation may get spoiled.
However, in this case, as pointed out by the learned counsel for respondents, the
learned single Judge has observed that the appellant’s trademark was under
class 29 and the respondents trademark was under class 30 and further the
products marketed by the parties are also distinct and not similar, as the
respondents trademark is prefixed with the word ‘Patanjali’ and when the
respondents filed the application for registration of trademark, the appellant also
opposed the same and the same is pending before the Trade Marks Registry.
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OSA No.263 of 2020Further, when Section 12 of the Trade Marks Act gives discretion to the
Registrar to permit registration by more than one proprietor of the trademark
which are identical or similar in case of honest concurrent use and when Section
28(3) of the Trade Marks Act permits coexistence of two or more owners of
identical or nearly similar trademark, the appellant’s prospect to succeed is
remote even if the averments made by the appellant are taken as proved in toto.
The learned Judge has also dealt with the legal provisions in relation to the
products marketed by the appellant and the respondents and found that no oral
evidence is required to decide the issue involved in this case. The main
question is as to whether the respondents are entitled to register the trademark in
the name of PATANJALI AAROGYA and the learned single Judge, applying the
principle laid down by the Hon’ble Supreme Court in Vishnudas Trading case
(cited supra), finding that the goods falling under clause 30 (biscuits) are
entirely different from the goods falling under clause 29 (milk and milk
products) and the respondents are protected under Section 28(3) of the Trade
Marks Act, and also the scope of Order XIII Rule 3 of the Civil Procedure
Code, as amended in the Commercial Courts Act, empowering the Court to pass
a summary judgment, has allowed the application filed by the respondents and
dismissed the suit of the appellant.
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OSA No.263 of 2020
17. On overall consideration of the materials, this Court finds that there is
no reason to interfere with the judgment and decree passed by the learned single
Judge. Accordingly, the original side appeal stands dismissed. There shall be no
order as to costs.
(P.VELMURUGAN J.) (K.GOVINDARAJAN THILAKAVADI J.)
21-04-2026
Index:Yes/No
Speaking/Non-speaking order
Internet:Yes
Neutral Citation:Yes/No
ss
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OSA No.263 of 2020
P.VELMURUGAN J.
AND
K.GOVINDARAJAN
THILAKAVADI J.
ss
Judgment in OSA
No.263 of 2020
21-04-2026
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